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Brain drain in states barring gay marriage: Column

Now that we have become what the Human Rights Campaign calls 'two Americas' when it comes to gay rights, those discriminated against in the past now have choices.

Edie Windsor, who successfully sued the U.S. government over the constitutionality of the Defense of Marriage Act, rides in a gay pride parade on June 30 in New York City.(Photo: Andrew Burton, Getty Images)

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An LGBT job flight that began even before the Supreme Court's rulings.

Gay clients who are hot prospects now have clear choices when it comes to legal protections.

Now that we have become what the Human Rights Campaign calls "two Americas" when it comes to gay rights, could a gay and lesbian "brain drain" away from states that ban same-sex marriage be far behind?

It was telling that 278 of America's top corporations and municipalities were so worried about losing talented gay and lesbian workers that they filed briefs with the U.S. Supreme Court urging the justices to take the action they did: throwing out California's Proposition 8 and gutting the Defense of Marriage Act (DOMA).

Several of those companies were concerned about losing LGBT workers with foreign-born partners, prompting the companies to write a letter to Congress saying, "We cannot afford to lose our most precious resource: talent."

And that talent is apparently already being lost, due to an LGBT job flight that began even before the Supreme Court's rulings.

The Michigan Civil Rights Commission published a report earlier this year on the economic impact of that state's law that bans domestic partnerships for state workers.

In a section of the report titled, "Discrimination Impacts the Economy," the commissioners found, "People are leaving the state … and seeking out jobs with employers that have policies and environments inclusive of and favorable toward LGBT employees."

Ironically, Michigan's domestic partnership ban was just blocked by a judge who cited the new U.S. Supreme Court DOMA ruling. The Michigan ban will now be challenged in a trial.

"I think the concept of an LGBT brain drain is a possibility," says Joe McCormack, managing partner of McCormack & Warren Executive Search Consultants, a national job placement firm based in Palm Springs.

McCormack says his gay and lesbian clients who are hot prospects now have clear choices when it comes to legal protections.

"I would say one of the first questions we get from any LGBT candidate is about corporate benefits, and whether they are available to same-sex partners. If that answer is no, that is a big red flag for them."

Bank of America was already interviewed by the San Francisco Business Times about how it will handle requests from gay and lesbian employees who want to transfer to more friendly states. B-of-A said it was "too soon" to discuss it, but, as the paper noted, the bank will not be the only company that has to deal with LGBT transfer requests.

Certainly many gay and lesbian professionals, managers, professors and members of the creative class may simply vote with their feet and leave. In this mobile society, it's too easy for a talented worker who is in demand to move to the other America.

One America is 30 percent of the country, now that California allows gay marriage. The other America is 70 percent, with 37 states that don't allow gay marriage and all its legal protections. And those protections are significant. Sunday's New York Times reported that legally married LGBT couples could still lose Social Security and veterans' benefits if they live in states that don't recognize their marriages.

About a dozen additional states considering same-sex marriage are "in play," and if they should all adopt it the states would be split right in half, 50/50.

But are smart gay and lesbian workers going to wait for their states to come around, or are they going to take their lives into their own hands?

Corporate headhunter McCormack expects LGBT employees to be pro-active and move, and the same goes for many of his straight clients.

"It's not just because LGBT people may choose to work there," McCormack says about gay-friendly states and companies, "It's a whole generation who have grown-up accepting LGBT co-workers as equals who do not want to work for companies that aren't progressive."

So if the next step is, indeed, a brain drain by LGBT workers, it may not exactly be a gay version of "Atlas Shrugged," but they will certainly leave behind states that are much duller places.

Hank Plante covered the Proposition 8 case for the CBS TV stations in San Francisco and Los Angeles. This piece originally appeared in the Desert Sun.

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